Daca Litigation and the Opportunity for All Campaign

DACA Litigation and the Opportunity for All Campaign

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Kaitlyn A. Box, Ahilan T. Arulanantham, and Anil Kalhan ^*

Abstract: In this panel, Anil Kalhan and Ahilan Arunathalam discussed the DACA litigation and the Opportunity for All Campaign, an effort by the University of California to provide work authorization to undocumented students. Anil Kalhan highlights how litigation on the Obama administration's deferred action initiatives and the Supreme Court's decision in Department of Homeland Security v. Regents of the University of California have reshaped the understanding of deferred action. Ahilan Arunathalam discusses how IRCA § 1324(a) provides a basis for states to employ undocumented persons, and addresses how legal challenges to state immigration laws, taking Texas's S.B. 4 as an example, could interact with programs like Opportunity For All.

Kaitlyn A. Box

Good afternoon, everyone. Thank you all for being here. And most of all, thank you to our panelists for joining us today. As you know, the topic of the day is shaping immigration policy through the federal courts. If you've been paying attention to the news or if you listened to Cyrus's introductory remarks, you'll know that we've recently seen numerous examples of litigation that could really significantly reshape the immigration policy landscape. Today's panel will center on litigation that has challenged two programs that predominantly concern students, the Opportunity for All campaign and DACA (Deferred Action for Childhood Arrivals). To my left is Anil Kalhan, a professor of law at Drexel University and a professor at the Drexel University Center for Science Technology and Society. He is also an affiliated fellow at the Yale Law School Information Society Project and an affiliated faculty member at the University of Pennsylvania's South Asia Center. To my far left is Ahilan T. Arulanantham, who is a professor from practice and faculty co-director of the Center for Immigration Law and Policy at UCLA's School of Law. Without further ado, I'll turn it over to our panelists.

Anil Kalhan

Thanks so much, Kaitlyn, and thanks so much to the editorial board of the AILA Law Journal for inviting me to be a part of this inaugural symposium. It's very exciting to help set a foundation for a tradition that hopefully

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will continue. In my remarks, I want to focus on some peculiarities in the long-running litigation over the Obama administration's deferred action initiatives, which has now spanned three administrations and extended for almost 12 years, through several distinct phases. In other work, I have developed an account of various aspects of that litigation and have explored a number of different questions that emerge from its trajectory, and my comments today specifically draw and build upon an essay I wrote for Dorf on Law last fall. ¹

What I want to aim to highlight here are the ways in which that litigation, and the Supreme Court's 2020 decision in Department of Homeland Security v. Regents of the University of California, in particular, have contributed to reshaping the very meaning of deferred action as a legal concept in a manner that, analytically speaking, has been and continues to be deeply confused. ² The understanding of deferred action that has emerged from this litigation bears little relationship to how many people in the field of immigration law understand deferred action—and have understood it for decades—but it does effectively serve the larger anti-immigration agenda of the conservative and restrictionist movements, which have now made great inroads into the federal courts and on the Supreme Court itself.

Most of you probably are familiar with many of the details of this litigation. But to briefly summarize, DACA, of course, was announced by the Obama administration in 2012. ³ Although opponents of the initiative filed a federal lawsuit challenging the initiative right away, that lawsuit failed on procedural grounds. ⁴ Then, a few years later, the Obama administration announced its 2014 deferred action initiatives, DAPA, the Deferred Action for Parents of Americans and Lawful Permanent Residents and the expansion of DACA, and Republican opponents of the litigation immediately went to court to try to block the initiatives. ⁵ They successfully judge-shopped for Andrew Hanen in the U.S. District Court for the Southern District of Texas, a Republican-appointed judge in Texas with a long and well-documented anti-immigration record. ⁶ Hanen quickly kneecapped the 2014 initiatives by issuing an order enjoining them nationwide. ⁷ Notably, that pattern of bringing lawsuits before single-judge divisions in the federal district courts in Texas and elsewhere has become a road map frequently used by Republican attorney generals, including the Attorney General of Texas, not only in immigration cases but across a range of other substantive areas. ⁸

It bears emphasis that the lawsuit challenging DAPA was not a tailored challenge to discrete aspects of the initiative. It was not a challenge to benefits as opposed to the exercise of enforcement and forbearance, for example. Rather, it was a wholesale broadside against the initiative's use of deferred action altogether, which the plaintiffs characterized as nothing less than a circumvention of the immigration statutes, a usurpation of congressional authority, and a violation of the president's obligation under Article II of the Constitution to "take care" that the laws be faithfully executed. In fact, in his ruling Hanen echoed this kind of rhetoric by frequently mischaracterizing deferred action as

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being tantamount or equivalent to a form of legal immigration status, which it is not. ⁹ When the Fifth Circuit affirmed Hanen's injunction, its conservative members used more refined and careful language than Hanen, but they, too, went out of their way to insist that DAPA was "more than nonenforcement" and instead bestows its recipients with an intertwined package of other "benefits" in one fell swoop, which they inventively subsumed within the label "lawful presence." ¹⁰

Legally speaking, of course, this is not a precise or accurate characterization of what deferred action is or how its beneficiaries might collaterally obtain "benefits" of one kind or another. To the extent that deferred action recipients (whether under initiatives like DACA and DAPA, or otherwise) become eligible for benefits, that eligibility invariably arises from separate federal, state, or local legal authority—not from the guidance memos creating the DACA or DAPA frameworks themselves or even from any particular grant of deferred action under those initiatives. ¹¹ Eligibility for employment authorization, for example, arises from statutory and regulatory authority dating back to the Reagan administration, regulations that were adopted using notice-and-comment rulemaking during the 1980s. ¹² And while "lawful presence" does exist as a category in the immigration laws, it does not exist in the manner that the Fifth Circuit characterized it. There are particular places where lawful presence or unlawful presence becomes relevant, but those are very specific contexts.

Like the litigants in the earlier phase of the litigation challenging DACA, the plaintiffs in the litigation before Hanen were not trying to distinguish between the exercise of enforcement discretion, on the one hand, and the conferral of benefits, on the other. Their claim was that the initiative was unlawful in its entirety. In fact, the plaintiffs never specifically challenged any "benefits" or foregrounded the language of "lawful presence" in their pleadings at all. And notwithstanding Judge Jerry Smith's artful but misleading use of the term "lawful presence" in his opinions for the Fifth Circuit, all of the judges ruling in favor of the plaintiffs in that phase of the litigation took the same position. The scope of Hanen's injunction, for example, was not tailored to benefits or in any other manner. Rather, it enjoined DAPA in its entirety, including its authorizing the exercise of enforcement discretion in the form of deferred action, and the Fifth Circuit affirmed that injunction in full. Only when the case got to the Supreme Court did the plaintiffs, taking their cues from Smith's Fifth Circuit's opinion, start to foreground the language of "lawful presence" and begin to suggest that there might be legal questions with respect to benefits like employment authorization. ¹³ But even then they did not do so for purposes of distinguishing between forbearance and benefits. Rather, like Smith, they invoked "lawful presence" to suggest that DAPA conferred something tantamount or equivalent to lawful immigration status—just as they had been doing in political and media discourse attacking the initiatives. ¹⁴

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In the Supreme Court, the Republican challengers to DAPA defended the nationwide scope of Hanen's injunction in its entirety. Ultimately, the Supreme Court deadlocked four to four, which left the Fifth Circuit's ruling in place without any binding precedent from the Supreme Court, and DAPA never went into effect. ¹⁵ But the litigation has left pretty deep imprints that have affected how DACA itself has now subsequently been understood—or maybe more to the point, how it has been misunderstood in court ever since.

Fast-forward to the Trump administration, which eventually tried to terminate DACA not on policy grounds, but by claiming, in a relatively cursory legal memo from Jeff Sessions, the attorney general, that the program was illegal. ¹⁶ It's worth noting that while the Trump administration and other conservatives were deeply, deeply invested in this legal position, insisting upon that position ultimately made it more difficult for the Trump administration to terminate the program. If the Trump administration had just said on a straightforward policy basis, "This is not a program that's required. And as a matter of policy...